Law Times

June 25, 2012

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ART LAW Canada could do more on stolen works: Epstein P3 CONDO REFORM P7 Current law not out of date $4.00 • Vol. 23, No. 22 COVERING ONTARIO'S LEGAL SCENE • WWW.LAWTIMESNEWS.COM Deputy judges challenge reappointment process Appeal arguments centre on a lack of uniformity in current system L AW TIMES BY KENDYL SEBESTA Law Times uty judges across the province, says a Toronto com- mercial litigator. David McCutcheon, a lawyer at Fraser Milner A n appeal last week by the Ontario Dep- uty Judges Association to the Ontario Court of Appeal has the potential to signifi cantly change the reappoint- ment process for more than 400 dep- Casgrain LLP who represented the Ontario Deputy Judges Association in its appeal application against the attorney general of Ontario last week, says there isn't a uniform process across the province for the re- appointment of deputy judges. He says the current system calls into question whether or not that process is suffi ciently inde- pendent when a regional senior judge makes the decision not to reappoint a deputy judge of the Small Claims Court. "Th e issue here is whether or not the process under which deputy judges are reappointed is suffi - ciently independent," says McCutcheon. "Right now, there is no real process in place for the 'Right now, there is no real process in place for the reappointment of deputy judges across the province,' says David McCutcheon. reappointment of deputy judges across the province. So, that process that was used by a regional senior judge in one area of Ontario could be very diff erent than another judge' province. My clients argued there should be some safeguards in place to address that." Th e Ontario Court of Appeal heard oral argu- ments from the association and the attorney general s process in another area of the in Toronto on June 18. Associate Chief Jus- tice Dennis O'Connor and justices Marc Rosenberg and Janet Simmons have re- served their decision. Th e appeal follows an application by the association to the Ontario Superior Court last year. At that time, the association had argued the reappointment process for deputy judges failed to include "minimum consti- tutional safeguards aff orded to other judg- es and justices of the peace. sought to have input into the reappoint- ment process for deputy judges by an in- dependent body rather than solely from a regional senior judge. Th e application also sought to declare the current reappoint- ment process to be invalid and an order " As a result, it Photo: Robin Kuniski amending the Courts of Justice Act on the grounds that it was unconstitutional. Th e attorney general opposed the appli- ntitled-4 1 FOCUS ON Municipal & Planning Law P9 June 25, 2012 12-03-20 10:44 A cation. It argued the current reappointment process complies with all constitutional re- quirements. Writing in Ontario Deputy Judges Asso- Appeal court clarifies costs orders against lawyers BY KENDYL SEBESTA Law Times C The case is a reminder that lawyers shouldn't fear personal costs awards against them, says Allan O'Brien. former clients says an Ontario Court of Appeal decision setting aside that order provides important clarifi ca- tion for the profession. "I think it certainly provides an ounsel for an Ottawa law- yer previously ordered to pay $72,000 in costs for his actions on behalf of two important clarifi cation to the courts about under what circumstances they are able to award costs per- sonally against a lawyer, O'Brien, who represented the lawyer, Kenneth Bickley. Th e comments follow the June 15 " says Allan ruling in Galganov v. Russell (Town- ship), in which the Ontario Court of Appeal set aside the decision of Superior Court Justice Monique Mé- tivier that awarded the eastern On- tario Township of Russell $180,000 in costs. In her May 2011 ruling, Mé- tivier ordered Bickley to pay 40 per cent of those costs. Métivier had determined that al- consider what aspects of his ac- tions were inappropriate. "Th e rule was not intended to al- low the frustration of the opposing party' though Bickley hadn't acted in bad faith, his conduct during a constitu- tional challenge by his former clients to stop a bylaw that would require all new commercial signs to be in both English and French had caused un- necessary costs. But the appeal court, in a ruling written by Justice Karen Weiler, decided otherwise this month. It determined Métivier didn't ade- quately separate Bickley' from that of his clients or fully s conduct a counsel personally because he or she went down a series of blind alleys with his or her clients' instructions or approval, s counsel to be taken out against ence to the rule related to ordering costs against a lawyer. "Rather, resort is to the general principles governing costs between parties, which include deterrence of unnecessary steps that unduly prolong litigation." Russell resident Jean-Serge Bris- " wrote Weiler in refer- ciation v. the Attorney General of Ontario last See Executive, page 4 son and language-rights activist Howard Galganov, both represented by Bickley, had launched a constitu- tional challenge against the bylaw last See Extreme, page 4 Input 2011 data until July 16, 2012 and your 2012 LawFirmKPI Benchmarking Report will be delivered in August 2012 PM #40762529

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